COUNTERPOINT: Should Informed Consent Be Required for Apnea Testing in Patients With Suspected Brain Death? Yes

The conceptual injustice of the brain death standard

Family disputes over the diagnosis of brain death have caused much controversy in the bioethics literature over the conceptual validity of the brain death standard. Given the tenuous status of brain death as death, it is pragmatically fruitful to reframe intractable debates about the metaphysical nature of brain death as metalinguistic disputes about its conceptual deployment. This new framework leaves the metaphysical debate open and brings into focus the social functions that are served by deploying the concept of brain death. In doing so, it highlights the epistemic injustice of medicolegal authorities that force people to uniformly accept brain death as a diagnosis of death based on normative considerations of institutional interests, such as saving hospital resources and organ supplies, rather than empirical evidence of brain death as death, which is insufficient at best and nonexistent at worst. In light of this injustice, I propose the rejection of the uniform standard of brain death in favor of a choice-based system that respects families' individualized views of death.

Exploring Ethical Dimensions in Neuropalliative Care

Neurologic illnesses can be challenging to diagnose, involve changes in consciousness, and are often complicated by prognostic uncertainty. These disorders can affect how individuals interact with their environment, and as a result, many ethical concerns may arise related to their medical care. Key ethical issues in neuropalliative care include shared decision-making, evolving autonomy and capacity, best interest and harm principles, beneficence and nonmaleficence, futile and inappropriate care, justice and equity, and ableism. The four core principles of medical ethics, beneficence, nonmaleficence, justice, and autonomy, are foundational in considering approaches to these ethical challenges. Shared decision-making is rooted in the principle of autonomy. Evolving autonomy and capacity evoke autonomy, beneficence, and nonmaleficence. The best interest and harm principles are rooted in beneficence and nonmaleficence. Questions of futility and inappropriate care are founded in the principles of nonmaleficence, autonomy, and justice. Ableism invokes questions of nonmaleficence, autonomy, and justice. Practitioners of neurology will encounter ethical challenges in their practice. Framing decisions around the core ethical principles of beneficence, nonmaleficence, autonomy, and justice will help clinicians navigate challenging situations while acknowledging and respecting each patient's individual story.

New developments in guidelines for brain death/death by neurological criteria

The declaration of brain death (BD), or death by neurological criteria (DNC), is medically and legally accepted throughout much of the world. However, inconsistencies in national and international policies have prompted efforts to harmonize practice and central concepts, both between and within countries. The World Brain Death Project was published in 2020, followed by notable revisions to the Canadian and US guidelines in 2023. The mission of these initiatives was to ensure accurate and conservative determination of BD/DNC, as false-positive determinations could have major negative implications for the medical field and the public's trust in our ability to accurately declare death. In this Review, we review the changes that were introduced in the 2023 US BD/DNC guidelines and consider how these guidelines compare with those formulated in Canada and elsewhere in the world. We address controversies in BD/DNC determination, including neuroendocrine function, consent and accommodation of objections, summarize the legal status of BD/DNC internationally and discuss areas for further BD/DNC research.

Refusals of the Determination of Death by Neurologic Criteria: A Mixed Methods Study of Physician Perspectives on Refusals Cases

OBJECTIVES

Refusals to allow examination for determination of death by neurologic criteria (DNC) challenge pediatric physicians and create distress for medical teams and families of patients suspected to meet criteria for DNC. The objective of this study was to inquire about and assess experiences with such refusals from the perspective of physicians.

DESIGN

We conducted a mixed-methods survey and interview-based study to understand physicians' experiences with refusals.

SETTING

An online survey was sent to pediatric intensivists and neurologists; phone interviews were conducted in a subset.

PATIENTS/PARTICIPANTS

The study included 80 physician survey respondents and 12 interview physician respondents.

INTERVENTIONS

None.

MEASUREMENTS AND MAIN RESULTS

Refusals occur for many reasons regarding patients with both acute and progressive brain injury. The most common reasons were consistent in surveys and interviews and include "waiting on a miracle," not wanting to give up, religious objections and disbelief in brain death. Time was an important mediator in many cases. Physicians described several approaches to managing refusals, highlighting the impact on medical teams, distraction from other patients, and need for resources to support physicians.

CONCLUSIONS

Refusals may have important sociodemographic associations that should be considered in managing complex cases. Physicians seek more guidance in law and policies to manage refusals.

Brain Death: Ethical and Legal Challenges

Although the fundamental principle behind the Uniform Determination of Death Act (UDDA), the equivalence of death by circulatory-respiratory and neurologic criteria, is accepted throughout the United States and much of the world, some families object to brain death/death by neurologic criteria. Clinicians struggle to address these objections. Some objections have been brought to court, particularly in the United States, leading to inconsistent outcomes and discussion about potential modifications to the UDDA to minimize ethical and legal controversies related to the determination of brain death/death by neurologic criteria.

Adverse Events During Apnea Testing for the Determination of Death by Neurologic Criteria: A Single-Center, Retrospective Pediatric Cohort

OBJECTIVES

To report the prevalence of adverse events in children undergoing apnea testing as part of the determination of death by neurologic criteria (DNC).

DESIGN

Single-center, retrospective study.

SETTING

Academic children's hospital that is a Level I Trauma Center.

PATIENTS

All children who underwent apnea testing to determine DNC from July 2013 to June 2020.

INTERVENTIONS

None.

MEASUREMENTS AND MAIN RESULTS

We abstracted the medical history, blood gases, ventilator settings, blood pressures, vasoactive infusions, intracranial pressures, chest radiographs, and echocardiograms for all apnea tests as well as any ancillary test. Adverse events were defined as hypotension, hypoxia, pneumothorax, arrhythmia, intracranial hypertension, and cardiac arrest. Fifty-eight patients had 105 apnea tests. Adverse events occurred in 21 of 105 apnea tests (20%), the most common being hypotension (15/105 [14%]) and hypoxia (4/105 [4%]). Five of 21 apnea tests (24%) with adverse events were terminated prematurely (three for hypoxia, one for hypotension, and one for both hypoxia and hypotension) but the patients did not require persistent escalation in care. In the other 16 of 21 apnea tests (76%) with adverse events, clinical changes were transient and managed by titrating vasoactive infusions or completing the apnea test.

CONCLUSIONS

In our center, 20% of all apnea tests were associated with adverse events. Only 5% of all apnea tests required premature termination and the remaining 15% were completed and the adverse events resolved with medical care.

Consent for determination of death by neurologic criteria in Canada: an analysis of legal and ethical authorities, and consensus-based working group recommendations

This article addresses the following question: should physicians obtain consent from the patient (through an advance directive) or their surrogate decision-maker to perform the assessments, evaluations, or tests necessary to determine whether death has occurred according to neurologic criteria? While legal bodies have not yet provided a definitive answer, significant legal and ethical authority holds that clinicians are not required to obtain family consent before making a death determination by neurologic criteria. There is a near consensus among available professional guidelines, statutes, and court decisions. Moreover, prevailing practice does not require consent to test for brain death. While arguments for requiring consent have some validity, proponents cannot surmount weightier considerations against imposing a consent requirement. Nevertheless, even though clinicians and hospitals may not be legally required to obtain consent, they should still notify families about their intent to determine death by neurologic criteria and offer temporary reasonable accommodations when feasible. This article was developed with the legal/ethics working group of the project, A Brain-Based Definition of Death and Criteria for its Determination After Arrest of Circulation or Neurologic Function in Canada developed in collaboration with the Canadian Critical Care Society, Canadian Blood Services, and the Canadian Medical Association. The article is meant to provide support and context for this project and is not intended to specifically advise physicians on legal risk, which in any event is likely jurisdiction dependent because of provincial or territorial variation in the laws. The article first reviews and analyzes ethical and legal authorities. It then offers consensus-based recommendations regarding consent for determination of death by neurologic criteria in Canada.

The Shifting Landscape of Death by Neurologic Criteria in Pediatrics: Current Controversies and Persistent Questions

Since the concept of death by neurologic criteria (DNC) or "brain death" was articulated by the Harvard Ad Hoc Committee in 1968, efforts to establish and uphold DNC as equivalent to biologic death have been supported through federal and state legislation, professional guidelines, and hospital policies. Despite these endeavors, DNC remains controversial among bioethics scholars and clinicians and is not universally accepted by patient families and the public. In this focused review, we outline the current points of contention surrounding the diagnosis of DNC in pediatric patients. These include physiologic, legal, and philosophical inconsistencies in the definition of DNC, controversy regarding the components of the clinical exam, variability in clinical practice, and ethical concerns regarding justice and role of informed consent. By better understanding these controversies, clinicians may serve families grappling with the diagnosis of DNC more effectively, compassionately, and equitably.

Should the Revised Uniform Determination of Death Act Address Objections to the Use of Neurologic Criteria to Declare Death?

In response to concerns about the declaration of death by neurologic criteria, the Uniform Law Commission created a drafting committee to update the Uniform Determination of Death Act (UDDA) in the Fall of 2021. One of the key questions for the committee to address was the following: Should the revised UDDA address objections to the use of neurologic criteria to declare death? This article (1) provides historical background and survey results that demonstrate the need to address this question; (2) summarizes the ethical principles that support and oppose accommodation of objections to the use of neurologic criteria to declare death; (3) reviews accommodation in other areas of medicine and law; (4) discusses existing legal and hospital guidance on management of these objections; (5) examines perspectives of stakeholder medical societies and expert health care professionals, lawyers, ethicists, and philosophers on whether the revised UDDA should address these objections; (6) identifies some questions for the drafting committee to consider when deciding whether the revised UDDA should address objections to the use of neurologic criteria to declare death; and (7) summarizes the potential downstream effects of the drafting committee's decision.

Pediatric brain death certification: a narrative review

In the five decades since its inception, brain death has become an accepted medical and legal concept throughout most of the world. There was initial reluctance to apply brain death criteria to children as they are believed more likely to regain neurologic function following injury. In spite of early trepidation, criteria for pediatric brain death certification were first proposed in 1987 by a multidisciplinary committee comprised of experts in the medical and legal communities. Protocols have since been developed to standardize brain death determination, but there remains substantial variability in practice throughout the world. In addition, brain death remains a topic of considerable ethical, philosophical, and legal controversy, and is often misrepresented in the media. In the present article, we discuss the history of brain death and the guidelines for its determination. We provide an overview of past and present challenges to its concept and diagnosis from biophilosophical, ethical and legal perspectives, and highlight differences between adult and pediatric brain death determination. We conclude by anticipating future directions for brain death as related to the emergence of new technologies. It is our position that providers should endorse the criteria for brain death diagnosis in children as proposed by the Society of Critical Care Medicine (SCCM), American Academy of Pediatrics (AAP), and Child Neurology Society (CNS), in order to prevent controversy and subjectivity surrounding what constitutes life versus death.

Statement in Support of Revising the Uniform Determination of Death Act and in Opposition to a Proposed Revision

Discrepancies between the Uniform Determination of Death Act (UDDA) and the adult and pediatric diagnostic guidelines for brain death (BD) (the "Guidelines") have motivated proposals to revise the UDDA. A revision proposed by Lewis, Bonnie and Pope (the RUDDA), has received particular attention, the three novelties of which would be: (1) to specify the Guidelines as the legally recognized "medical standard," (2) to exclude hypothalamic function from the category of "brain function," and (3) to authorize physicians to conduct an apnea test without consent and even over a proxy's objection. One hundred seven experts in medicine, bioethics, philosophy, and law, spanning a wide variety of perspectives, have come together in agreement that while the UDDA needs revision, the RUDDA is not the way to do it. Specifically, (1) the Guidelines have a non-negligible risk of false-positive error, (2) hypothalamic function is more relevant to the organism as a whole than any brainstem reflex, and (3) the apnea test carries a risk of precipitating BD in a non-BD patient, provides no benefit to the patient, does not reliably accomplish its intended purpose, and is not even absolutely necessary for diagnosing BD according to the internal logic of the Guidelines; it should at the very least require informed consent, as do many procedures that are much more beneficial and less risky. Finally, objections to a neurologic criterion of death are not based only on religious belief or ignorance. People have a right to not have a concept of death that experts vigorously debate imposed upon them against their judgment and conscience; any revision of the UDDA should therefore contain an opt-out clause for those who accept only a circulatory-respiratory criterion.

Apnea Testing for the Determination of Brain Death: A Systematic Scoping Review

Apnea is one of the three cardinal findings in brain death (BD). Apnea testing (AT) is physiologically and practically complex. We sought to review described modifications of AT, safety and complication rates, monitoring techniques, performance of AT on extracorporeal membrane oxygenation (ECMO), and other relevant considerations regarding AT. We conducted a systematic scoping review to answer these questions by searching the literature on AT in English language available in PubMed or EMBASE since 1980. Pediatric or animal studies were excluded. A total of 87 articles matched our inclusion criteria and were qualitatively synthesized in this review. A large body of the literature on AT since its inception addresses a variety of modifications, monitoring techniques, complication rates, ways to perform AT on ECMO, and other considerations such as variability in protocols, lack of uniform awareness, and legal considerations. Only some modifications are widely used, especially methods to maintain oxygenation, and most are not standardized or endorsed by brain death guidelines. Future updates to AT protocols and strive for unification of such protocols are desirable.

A review of current controversies in determining death by neurologic criteria in children

PURPOSE OF REVIEW

Death by neurologic criteria (DNC) is the irreversible cessation of all functions of the entire brain, including the brainstem. It is legally recognized as equivalent to cardiopulmonary death. Legal and ethical controversies surrounding DNC have emerged as a result of several highly publicized cases that have eroded public trust in our ability to declare DNC accurately. In this review, we focus on recently published primary data about DNC and address some of these controversies.

RECENT FINDINGS

Approximately 21% of children who die in pediatric intensive care units (PICU) are declared DNC. Although 60% of physicians report that they have been asked to maintain organ support after DNC declaration, less than 1% of patients remain physically present in the PICU more than 5 days after DNC declaration. We discuss strategies for safely conducting the apnea test, indications and prevalence of ancillary testing, and objections to DNC, including issues of consent and requests for ongoing organ support.

SUMMARY

In order to maintain public trust, published guidelines must be followed to accurately and consistently diagnose DNC. We must develop strategies to respond to objections to DNC determination. Ongoing research is needed to improve the safety of apnea testing and indications for and interpretation of ancillary testing.

Ethical and legal considerations related to disorders of consciousness

PURPOSE OF REVIEW

The purpose of this review is to describe ethical and legal issues that arise in the management of patients with disorders of consciousness ranging from the minimally conscious state to the coma state, as well as brain death.

RECENT FINDINGS

The recent literature highlights dilemmas created by diagnostic and prognostic uncertainties in patients with disorders of consciousness. The discussion also reveals the challenges experienced by the disability community, which includes individuals with severe brain injury who are classified as having a disorder of consciousness. We review current guidelines for management of patients with disorders of consciousness including discussions around diagnosis, prognosis, consideration of neuropalliation, and decisions around life sustaining medical treatment.

SUMMARY

In the setting of uncertainty, this review describes the utility of applying a disability rights perspective and shared decision-making process to approach medical decision-making for patients with disorders of consciousness. We outline approaches to identifying surrogate decision makers, standards for decision-making and decision-making processes, specifically addressing the concept of futility as a less useful framework for making decisions. We also highlight special considerations for research, innovative and controversial care, brain death, organ donation, and child abuse and neglect.

Is informed consent required for the diagnosis of brain death regardless of consent for organ donation?

In the half-century history of clinical practice of diagnosing brain death, informed consent has seldom been considered until very recently. Like many other medical diagnoses and ordinary death pronouncements, it has been taken for granted for decades that brain death is diagnosed and death is declared without consideration of the patient's advance directives or family's wishes. This essay examines the pros and cons of using informed consent before the diagnosis of brain death from an ethical point of view. As shared decision-making in clinical practice became increasingly indispensable, respect for the patients' autonomous wishes regarding how to end their lives has a significant role in deciding how death is diagnosed. Brain death, as a fully technologically controlled death, may require a different ethical framework from the old one for traditional cardiac death. With emerging and proliferating options in end-of-life care for those who suffer from catastrophic brain injury, the traditional reasoning that 'death gives no choice, hence no consent' requires another examination. Patients facing imminent brain death now have options other than undergoing the diagnostic workup for brain death, such as donation after circulatory death and withdrawal of life-sustaining treatment with maximum comfort measures for death with dignity. Nevertheless, just as in the debate over opt-in versus opt-out organ donation policies, informed consent before the diagnosis of brain death faces fierce opposition from consequentialists urging the expansion of the donor pool. This essay examines these objections and provides constructive replies along with a proposal to accommodate this morally required consent.

Does the Uniform Determination of Death Act Need to Be Revised?

Prompted by concerns raised by the rise in litigations, which challenge the legal status of brain death (BD), Lewis and colleagues recently proposed a revision of the Uniform Determination of Death Act (UDDA). The revision consists of (i) narrowing down the definition of BD to the loss of specific brain functions, namely those functions that can be assessed on bedside neurological examination; (ii) requiring that the determination of BD must be in accordance with the specific guidelines designated in the revision; and (iii) eliminating the necessity for obtaining consent prior to performing the tests for BD determination. By analyzing Lewis and colleagues' revision, this article shows that this revision is fraught with difficulties. Therefore, this article also proposes two approaches for an ethical revision of the UDDA; the first is in accordance with scientific realism and Christian anthropology, while the second is grounded in trust and respect for persons. If the UDDA is to be revised, then it should be based on sound ethical principles in order to resolve the ongoing BD controversies and rebuild public trust.

Summary

This article critically examines the recent revision of the Uniform Determination of Death Act (UDDA) advanced by Lewis and colleagues. The revision only further reinforces the status quo of brain death without taking into account the root cause of the litigations and controversies about the declaration of death by neurological criteria. In view of this deficiency, this article offers two approaches to revising the UDDA, both of which are founded on sound moral principles.

Legal and Ethical Considerations for Requiring Consent for Apnea Testing in Brain Death Determination

The past decade has witnessed escalating legal and ethical challenges to the diagnosis of death by neurologic criteria (DNC). The legal tactic of demanding consent for the apnea test, if successful, can halt the DNC. However, US law is currently unsettled and inconsistent in this matter. Consent has been required in several trial cases in Montana and Kansas but not in Virginia and Nevada. In this paper, we analyze and evaluate the legal and ethical bases for requiring consent before apnea testing and defend such a requirement by appealing to ethical and legal principles of informed consent and battery and the right to refuse medical treatment. We conclude by considering and rebutting two major objections to a consent requirement for apnea testing: (1) a justice-based objection to allocate scarce resources fairly and (2) a social utility objection that halting the diagnosis of brain death will reduce the number of organ donors.

Controversies in Brain Death Declaration: Legal and Ethical Implications in the ICU

Purpose of review

This article provides a brief overview of the history and complexities of brain death determination. We examine a few legal cases that highlight some of the controversies surrounding the validity of brain death tests in light of varying state laws and institutional policy, the appropriateness of making religious accommodations, the dilemma of continuing organ-sustaining support in a pregnant brain-dead patient, and the issue of whether to obtain informed consent from surrogate decision makers before proceeding to testing.

Recent findings

In response to physician concerns about navigating these complex cases, especially with laws that vary from state to state, the American Academy of Neurology has published a position statement in January of 2019 endorsing brain death as the irreversible loss of all functions of the entire brain. It provides positions on the determination of brain death as well as guidance surrounding requests for accommodation.

Summary

Although death by neurologic criteria has been accepted as death medically for over 40 years, legal variance exists throughout the states, especially regarding religious accommodations and in pregnancy. Questions of whether to obtain informed consent from surrogate decision makers prior to brain death testing remain, and there is no guideline regarding obtaining ancillary testing. We expect to see continued cases that cause medical, legal, and ethical controversies in our ICUs. As such, uniform training in proper methodology in performing the brain death examination and appropriate use of ancillary testing is crucial, and there is a need for legal consistency in the acceptance of the medical standard.

Medicolegal Complications of Apnoea Testing for Determination of Brain Death

Recently, there have been a number of lawsuits in the United States in which families objected to performance of apnoea testing for determination of brain death. The courts reached conflicting determinations in these cases. We discuss the medicolegal complications associated with apnoea testing that are highlighted by these cases and our position that the decision to perform apnoea testing should be made by clinicians, not families, judges, or juries.

Ethical and Legal Concerns With Nevada's Brain Death Amendments

In early 2017, Nevada amended its Uniform Determination of Death Act (UDDA), in order to clarify the neurologic criteria for the determination of death. The amendments stipulate that a determination of death is a clinical decision that does not require familial consent and that the appropriate standard for determining neurologic death is the American Academy of Neurology's (AAN) guidelines. Once a physician makes such a determination of death, the Nevada amendments require the withdrawal of life-sustaining treatment within twenty-four hours with limited exceptions. Neurologists have generally supported Nevada's amendments for clarifying the diagnostic standard and limiting the ability of family members to challenge it. However, it is more appropriate to view the Nevada amendments with concern. Even though the primary purpose of the UDDA is to ensure that all functions of a person's entire brain have ceased, the AAN guidelines do not accurately assess this. In addition, by characterizing the determination of death as solely a clinical decision, the Nevada legislature has improperly ignored the doctrine of informed consent, as well as the beliefs of particular faiths and cultures that reject brain death. Rather than resolving controversies regarding brain death determinations, the Nevada amendments may instead instigate numerous constitutional challenges.